Citation Nr: 0723983
Decision Date: 08/03/07 Archive Date: 08/15/07
DOCKET NO. 03-26 846 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Houston, Texas
THE ISSUES
1. Entitlement to a disability evaluation in excess of 10
percent for a service-connected post-operative inguinal
hernia.
2. Entitlement to a disability evaluation in excess of 10
percent for service-connected residuals of fractures of the
right ring and little fingers.
REPRESENTATION
Veteran represented by: Texas Veterans Commission
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
C. Kedem, Counsel
INTRODUCTION
The veteran served on active duty from August 1995 to
September 1998.
This matter comes to the Board of Veterans' Appeals (Board)
from a January 2003 rating decision by which the RO denied
the veteran's claims.
By March 2005 rating decision, the RO assigned an increased
rating for the service-connected post-operative inguinal
hernia. Specifically, the RO increased the veteran's
disability evaluation for the service-connected post-
operative inguinal hernia from zero to 10 percent. Although
each increase represents a grant of benefits, a decision
awarding a higher rating, but less that the maximum available
benefit, does not abrogate the pending appeal. AB v. Brown,
6 Vet. App. 35, 38 (1993). Thus, this matter continues
before the Board.
In March 2007, the veteran testified at a hearing before the
undersigned at the RO.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the veteran
if further action is required on his part.
REMAND
At his March 2007 hearing, the veteran asked that the record
be held open for 60 days in order that he have an opportunity
to submit further evidence. The undersigned granted the
request, and the record was held open until May 21, 2007. As
of this date, no further evidence has been received.
Nonetheless, the Board cannot proceed with a decision at this
time because of unclear testimony regarding whether the
veteran is receiving VA medical treatment.
When asked whether he was receiving VA medical treatment, the
veteran responded in the affirmative. However, when asked
where he was being treated by VA, he named a local university
hospital and not a VA medical facility. Nonetheless, because
there may well be outstanding VA clinical records that have
not been associated with the claims file, the RO should
associate with the record all VA clinical records from the
South Texas Veterans Health Care System dated from February
2006 to the present. See Bell v. Derwinski, 2 Vet. App. 611
(1992) (VA medical records are in constructive possession of
the agency, and must be obtained if the material could be
determinative of the claim).
At his March 2007 hearing, the veteran asserted that the
disabilities on appeal had worsened and that he was seeking
help at pain management clinics as a result. As such, the RO
should schedule VA medical examinations to assess the current
severity of the disabilities on appeal herein, as described
below.
Accordingly, the case is REMANDED to the RO via the AMC for
the following action:
1. Associate with the claims file all
South Texas Veterans Health Care System
clinical records dated from February 2006
to the present.
2. Schedule a VA medical examination to
assess the current severity of the
veteran's service-connected post-operative
inguinal hernia. All symptoms and
manifestations should be enumerated, and
the severity of each symptom and
manifestation should be assessed. The
examiner should order all indicated
diagnostic tests. The examiner is asked
to review the claims file in its entirety
in conjunction with the examination and
provide a rationale for all conclusions.
The examination report should indicate
whether the claims file was reviewed.
3. Schedule a VA orthopedic examination
to assess the current severity of the
veteran's service-connected residuals of
fractures of the right ring and little
fingers. All symptoms and manifestations
should be enumerated, and the severity of
each symptom and manifestation should be
assessed. The examiner in this regard
should identify any objective evidence of
pain or functional loss due to pain
associated with the service- connected
disability. The examiner should be
requested to provide an opinion as to the
extent that pain limits the veteran's
functional ability. The examiner should
also be requested to determine whether,
and to what extent, the service-connected
disability exhibits weakened movement,
excess fatigability, or incoordination.
Finally, the examiner should comment on
the effect of the service-connected
disability on finger motion. Range of
motion of the right ring and little
fingers should be reported, including
whether either favorable or unfavorable
ankylosis exists. The examiner is asked
to review the claims file in its entirety
in conjunction with the examination and
provide a rationale for all conclusions.
The examination report should indicate
that the claims file was reviewed.
4. After the development requested above
has been completed to the extent possible,
the RO should again review the record. If
any benefit sought on appeal remains
denied, the veteran and his representative
should be furnished a Supplemental
Statement of the Case and given the
opportunity to respond thereto.
The veteran has the right to submit additional evidence and
argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by
the United States Court of Appeals for Veterans Claims for
additional development or other appropriate action must be
handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B,
7112 (West Supp. 2006).
_________________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2006).